“The Menace of the Hour”: An anti-monopoly cartoon by George Luks in The Verdict, 1899.(Universal History Archive / Universal Images Group via Getty Images)
From the time Joe Biden was a toddler until his mid-30s, wages in the country grew, and the wealth created by growth in the economy was shared by everyone. But by the time Biden hit 40, everything had begun to change. The incomes of those at the top grew strongly, while the wages of middle-class and poor people hit a wall. Labor’s power decreased, and monopoly power increased. It became harder to organize workers, harder to start new businesses, and easier for capital to organize. It was the early 1980s, and Ronald Reagan was president.
I have a dream that in the first 100 days of his presidency, Biden will lay out these stark facts and declare it his mission to bring growth and equity to this country—and to destroy the chasm that now exists between growth and shared prosperity. He will say, “Shared prosperity is the only kind worth fighting for, because the prosperity of those at the top has been made possible by massive, unprecedented wage theft, unfair competition, and the purchase of our politicians by powerful interests. The results have been increased inequality, decreased dignity, more instability, and the corporate takeover of our sacred democracy. As your president, I will make it my solemn responsibility to free America from the vice grip of corporate monopolization.”
In that speech, Biden will announce that the industrial policy of the United States will be to proactively support labor at every turn and to crush monopolies. He will direct the Department of Justice to rip up the antitrust guidelines written by Reagan and those who followed him—George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama, all of whom framed their industrial policy in talk of “consumer welfare.”
The Biden guidelines will declare instead that the purpose of antitrust law is to protect democracy and to ensure a rough equality among citizens. Barry Lynn, author of the recent book Liberty From All Masters, argues that mere technical fixes will not be sufficient; we have to change the way the government approaches the whole problem of economic power in society. The biggest thing Biden could do, according to Lynn: “Get rid of the Reagan-era consumer welfare pro-monopoly philosophy. There is nothing more important than saying the purpose of the law IS to protect democracy and liberty, not to protect consumer welfare.”
Biden can roar into the White House with the vision laid out for him by Ted Kaufman, one of his transition team cochairs, who praised Franklin Roosevelt’s aggressive approach to monopoly abuses, saying, “FDR’s leadership brought us back into economic balance. There is no reason, through dedication and hard work, we cannot do the same.” From Kaufman’s lips to Biden’s ear.
In the first 100 days, to give energy and credibility to his challenge, Biden’s Federal Trade Commission should tear down the ideological wall that has limited the power of antitrust enforcers to stop capital from organizing. But he shouldn’t stop there. Biden can weave anti-monopoly policy throughout his administration if he takes the following steps:
§ Biden’s FTC should ban noncompete clauses in all employment arrangements. Noncompete clauses are contracts, written against the spirit of all antitrust laws, that can make it nearly impossible for employees to look for work in the same field when they leave a job—which, in turn, makes it very difficult to bargain for decent wages or benefits.
§ Biden’s FTC should ban exclusive agreements by dominant firms. Monopolists use these agreements to make it difficult for new or smaller firms to succeed, by limiting their ability to get into various markets. Several organizations, led by the Open Markets Institute, have asked the FTC to issue such a ban, because exclusive agreements allow these corporations to abuse customers, distributors, suppliers, and workers.
§ Biden’s FTC should issue bright-line rules and clear market-share guidelines for mergers. These would build off the 1968 guidelines that served to deter mergers by dominant companies. For instance, in 1968, the FTC would ordinarily have challenged the merger of a firm with 10 percent of the share in a highly concentrated market with a firm that had 2 percent or more. New guidelines would ensure that big companies can’t eat their competition or potential competitors.
§ The National Labor Relations Board should issue rules clarifying that Uber and Lyft drivers are employees under federal law. That would give them the right to join a union, along with the power to negotiate over their working conditions, preempting much of California’s newly passed Proposition 22.
§ Biden should issue an executive order that strips the Office of Information and Regulatory Affairs of its power to veto rules made by agencies. OIRA has operated as a mini–Supreme Court within past administrations by using cost-benefit analyses to reject key regulations as too damaging to the corporate bottom line.
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§ Biden should direct the secretary of agriculture to use the department’s power under the Packers and Stockyards Act, a 1921 law that gives the president responsibility for protecting against concentration in agriculture. Using this power, his administration could ban abusive contracts between farmers and monopolist corporate meat packers, as well as block new mergers and undo prior bad ones.
§ Biden should direct his secretary of transportation to overturn the existing rule that gives airlines antitrust immunity.
§ Biden should direct the Federal Energy Regulatory Commission to restructure the energy sector to promote decentralized sources of power, green technologies, and more robust supplies of renewable energy.
§ Biden should direct the Defense Department to issue new contracting guidelines. Over the past 40 years, presidents have loosened the rules on monopoly contracts, weakened procurement rules designed to ensure fair competition, allowed waivers of the Buy America Act, and weakened cost-reporting requirements. Biden’s team should reverse this trend and go back to New Deal–era contracting principles.
§ Biden should direct the tax authorities to focus on achieving an international agreement on digital taxes. Multinational monopolies, especially those in the tech industry, are organizing their global operations in such a way as to avoid taxes on corporate activity. The Treasury Department should negotiate with countries in the Organization for Economic Cooperation and Development to stop transnational tax avoidance.
§ Biden should task the Justice Department with pursuing an aggressive legal agenda, beginning with launching a major investigation of Amazon for essentially requiring sellers to use its warehousing services. The department should not only continue the Trump administration’s litigation against Google for illegally establishing and protecting a search monopoly but also bring a lawsuit against John Deere, the machinery manufacturing giant, for not allowing farmers to repair their own tractors. And it should launch an investigation into hospital consolidation.
§ Finally, Biden should adopt the conclusions of the extraordinary House Antitrust Subcommittee report released in October, which calls for, among other things, breaking up the big tech companies into their component businesses, as Elizabeth Warren has also urged, and overruling bad Supreme Court precedents that make bringing antitrust cases harder.
There isn’t much time to act. The tentacles of today’s monopolistic companies reach into every corner of American life. Biden should harness the energy of the moment and seize the chance to free our country from the manacles of monopoly.
Zephyr TeachoutZephyr Teachout, a Nation editorial board member, is a constitutional lawyer and law professor at Fordham University and the author of Break ’Em Up: Recovering Our Freedom From Big Ag, Big Tech, and Big Money.